# Amarnath v. Bhuwaneshwar Prasad Gupta

- **Citation:** (2016) 4 ILRA 36
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-15
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amarnath-v-bhuwaneshwar-prasad-gupta-43635
- **Pages:** 6

## Text

36 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Perusal of Rule 9 of the Rules indicates that any person driving a goods carriage carrying
goods of dangerous or hazardous nature to human life shall, in addition to being the holder of
the driving licence to drive a transport vehicle, also has the ability to read and write at least one
Indian language out of those specified in the VIII Schedule of the Constitution and English and also
possess a certificate of having successfully passed a course consisting of the syllabus as mentioned
in the said rule and periodicity connected with the transport of such goods and for endorsement the
driving licence holder shall move an application before the prescribed authority who shall make the
endorsement in the driving licence to the said effect.

13. Rule 9 of the Rules shall apply where a transport vehicle is carrying goods of dangerous or
hazardous nature to human life. It is not the case of the appellant that as on the date and time of
accident the tanker in question was carrying goods of dangerous or hazardous nature to human life.
Since it is undisputed that driver of the tanker in question was having a valid driving licence to
drive a transport vehicle effective from 12.10.2000 and it is not the case of the appellant that on the
date and time of accident the tanker was carrying goods of dangerous or hazardous nature and the
documentary evidences as aforementioned brought on record before the Tribunal could not be
disputed by the appellants and, therefore, I do not find any error in the impugned award of the
Tribunal.

14. In view of the aforesaid, I find no merit in this appeal.

15. Consequently, appeal fails and is hereby dismissed. However, there shall be no order as to
costs.

16. Statutory deposit made before this Court shall be remitted to the tribunal concerned for
adjustment.
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APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.03.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal No.- 1106 Of 2015

Amarnath ...Appellant
Versus
Bhuwaneshwar Prasad Gupta ...Respondent

Counsel for Appellant:
Virendra Singh

Counsel for Respondent:
4 All. Amarnath Vs Bhuwaneshwar Prasad Gupta
37
Sanjeev Singh

HELD

A registered sale deed does not become void or voidable merely because a part of the sale
consideration remains unpaid, when the sale deed has been duly executed and registered, and the unpaid
amount constitutes future consideration.

Promise to pay remaining sale consideration in future is a valid consideration within the meaning of
Section 2(d) of the Indian Contract Act, 1872, and such promise completes the contract of sale.

Time for payment of remaining consideration is not the essence of the contract, unless expressly
stipulated and supported by conduct of the parties. Consent to mutation after execution of sale deed indicates
that time was not treated as essence.

A completed sale deed cannot be cancelled solely on the ground of non-payment of part
consideration, where ownership has already passed through execution and registration.

The proper remedy of the vendor in such a case is recovery of unpaid consideration or damages, not
cancellation of the sale deed.

Where the plaintiff has prayed for "any other relief" and an issue regarding relief has been framed, the
Court is empowered to grant appropriate relief even if not specifically claimed.

Order XLI Rule 33 CPC confers wide powers upon the appellate court to grant the decree that ought to
have been passed, in order to do complete justice between the parties.

The appellate court can grant a money decree for unpaid consideration even in second appeal, where
entitlement to such amount is undisputed and flows from admitted facts.

The judgments of the trial court and first appellate court cancelling the sale deed were legally
unsustainable, as the sale deed was based on valid consideration and a completed contract.

The plaintiff-appellant is entitled to recover the unpaid sale consideration of ₹1,64,000/-, along with
interest, instead of cancellation of the sale deed.

Consequently, the second appeal is allowed, earlier judgments are set aside, and the suit is decreed for
recovery of money with interest, not for cancellation of the sale deed.

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. Heard learned counsel for the parties on admission of second appeal. After hearing it
appears that appeal may be decided at this stage. Therefore, I proceed accordingly.

2. It is admitted case of the parties that plaintiff Amarnath was owner of 1/3rd share of plot no.
142S, area 30.5 decimal situated in village Chak Mubarak. It is also admitted that plaintiff had
executed the registered sale-deed dated 20.07.2004 of his whole share in said land in favour of
defendant Bhuwaneshwar Prasad Gupta for consideration of Rs. 3,40,000/-. It is admitted that at
38 INDIAN LAW REPORTS ALLAHABAD SERIES
the time of execution the plaintiff had received Rs. 1,76,000/- as sale consideration to defendant. It
is also admitted that at the time of registration of said sale-deed the defendant had agreed to pay
remaining consideration of Rs. 1,64,000/- to the plaintiff within one month. It is also admitted that
when defendant had not paid remaining consideration to plaintiff within one month then plaintiff
had filed suit for cancellation of said sale-deed dated 20.07.2004.

3. It is also admitted fact that after execution of sale-deed in question, although remaining
consideration was not paid by defendant within one month but plaintiff had raised no objection
before revenue court at the time of mutation of name of defendant over disputed land. This was
done before institution of original suit.

4. It is also admitted fact that after decree passed by the trial court, plaintiff had deposited the
amount of Rs. 2,09,440/-, out of which Rs. 1,76,000/- amount was directed by the trial court in its
judgment and remaining was interest.

5. It is also admitted fact between the parties that before filing of original suit no. 115/2006,
the plaintiff's brother had filed another civil suit on 31.03.2004 for disputed property. In said suit,
Court had granted stay order on 11.08.2004. It is also admitted that after filing of present original
suit, the defendant Bhubneshwar Prasad had filed another original suit 176/2006 (Bhuwaneshwar
Prasad v. Amar Nath) for seeking refund of aforesaid sale consideration of Rs. 1,76,000/-, then the
defendant of said suit Amarnath had filed written-statement, by which he agreed to pay the
consideration of Rs. 1,76,000/-. But later on said original suit no. 176/2006 was withdrawn in year
2012 (before the decision of original suit no. 115/2006 relating to present appeal).

6. In original suit no. 115/2006 the trial court had accepted written statement, framed issues,
accepted the adduced evidences and then the trial court had passed judgment dated 23.09.2013, by
which suit of plaintiff Amarnath was decreed for cancellation of sale-deed dated 20.07.2004 with
direction to plaintiff to return the paid part consideration of Rs. 1,76,000/- to defendant, with
interest @ 12 per cent per annum.

7. Against the judgment of trial court, Civil Appeal no. 23/2013 (Bhuvneshwar Prasad v.
Amar Nath) was preferred, which was heard and allowed by the judgment dated 21.11.2015 by
Additional District Judge, Court No.-5, Ballia. In its judgment the first appellate court had held that
in present case sale-deed in question had been properly executed after which the mutation of name
of defendant was carried out disputed agricultural property. The first appellate court had held that
in present contract of sale and execution of registered sale-deed in question, time of payment of
remaining sale consideration was not essence of the contract for transferring ownership of disputed
property which was transferred by sale-deed in question from plaintiff to defendant. So the said
properly executed sale-deed cannot be cancelled because said it was neither voidable nor void. But
for default in performing his promise of payment of remaining consideration, plaintiff is entitled to
recover remaining consideration/ damages from the defendant. Aggrieved by the judgment of first
appellate court, present Second Appeal was preferred by plaintiff of original suit.
4 All. Amarnath Vs Bhuwaneshwar Prasad Gupta
39

8. Learned counsel for the appellant contended that since it was agreed between the parties,
and in sale-deed dated 20.07.2004 in question, that the time for payment remaining consideration of
Rs. 1,64000/- is essence of the contract for sale, and since said amount was not paid by defendant,
therefore the sale-deed in question is liable to be cancelled; and judgment of trial court in this
regard is correct and proper, which should be upheld.

9. Learned counsel for the respondent contended that payment of remaining consideration of
Rs. 1,64,000/- was not essence of contract of sale. Had this been essence of contract for sale, then
plaintiff would not have given consent before revenue court at the time of mutation of name of
defendant, which was carried out after one month of execution of sale-deed. He contended that
defendant was ready and willing to pay remaining Rs. 1,64,000/- of unpaid consideration, but
plaintiff and his brother colluded, and thereafter the plaintiff's brother had filed another suit for
permanent injunction about the property sold by plaintiff, in which stay order had been passed by
the concerned court, therefore the defendant was unable to pay remaining consideration in spite of
his willingness. He further contended that at the best plaintiff can get payment of consideration of
Rs. 1,64,000/-. He further contended that, in fact, this amount was deposited in Court by
defendant/respondent, therefore there is no error in judgment of first appellate court and this appeal
should be dismissed in limne.

10. Admittedly, the parties had entered into a contract for sale and in compliance of which
registered sale-deed in question was executed by plaintiff in favour of defendant. It is also admitted
case that part of the consideration had been paid at the time of execution of sale-deed in question
and for remaining part of sale consideration it was written in sale-deed that it will be paid within
one month by defendant to plaintiff. It is also admitted that remaining consideration was not paid
by the defendant till the institution of the suit.

11. Learned counsel for the plaintiff contended that since whole consideration was not paid for
the property to be sold, therefore, in absence of payment of consideration sale-deed in question was
void, therefore it is liable to be cancelled.

12. This contention was refuted by learned counsel for the respondent, who contended that
sale-deed in question was completely executed at the time of it's registration by which part
consideration was paid and remaining consideration was promised. He contended that future
consideration is also a good consideration. He also contended that in any case the plaintiff has right
to recover the remaining consideration for which he can initiate the proceedings against the
defendant for recovery and even for the damages; but completed contract of sale cannot be treated
as void or illegal because the unpaid part of it's sale consideration was future payment.

13. The definition of consideration is given in Section 2(d) of the Indian Contract Act, 1982,
which reads as under:-
40 INDIAN LAW REPORTS ALLAHABAD SERIES

"2 (d). When, at the desire of promisor, the promisee or any other person has done or
abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing
something, such act or abstinence or promise is called a consideration for the promise".

14. This provisions makes it clear that "consideration" means a benefit based on promise of
promisor to promisee or by transferer to transferee. Such benefits depends upon the fact,
circumstances and necessities of the case. Even a promise perform for a third person can be a good
and valid consideration for contract.

15. A consideration may be past, present or future. An act already done may be a good
consideration. Consideration being transferred at the time of contract is present consideration and a
valid one. If it is not unlawful, and a promise to perform any act in future is, if not unlawful, is a
good consideration. To constitute consideration, there must be an act, abstinence or promisee or
part of promisee or some other person as the desire from the promisor, and unequivocal obligation
on the part of promisor to pay the amount in future constitute a good consideration.

16. Thus applying these principles in the present case the promise to pay the amount mentioned in saledeed in question was a good consideration alongwith present consideration. This made the consideration
complete, which have effect of completion of contract for sale. Therefore the registered sale-deed in question
dated 20.07.2004, based on legal consideration and completed contract for sale cannot be cancelled. But the
plaintiff-appellant is entitled to recover the consideration that was promised but not paid. But point to be
considered is that as to whether appellant can get relief in proceeding initiated for cancellation of registered
sale-deed in question, and in which relief for recovery of said amount was not sought.

17. The question is as to whether in present appeal the plaintiff-appellant can get such relief. In plaint of
the plaintiff-appellant alternative 'any other relief' was sought. Whether he could be granted relief of recovery
the consideration that was promised but not paid, and whether such relief may be granted to appellant in this
second appeal is the point to be considered.

18. Order 41, Rule 33 CPC read as under:

"33. Power of Court of Appeal - The Appellate Court shall have power to pass any decree and
make any order which ought to have been passed or made and to pass or make such further or other decree
or order as the case may require, and this power may be exercised by the Court notwithstandng that the
appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or
parties, although such respondents or parties may not have filed any appeal or objection and may, where
there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in
respect of all or any of the decrees, although an appeal may not have been filed against such decrees:

Provided that the Appellate Court shall not make any order under section 35A, in pursuance of
any objection on which the Court from whose decree the appeal is preferred has omitted or refused to made
such order."
4 All. Manoj Kumar Shukla Vs State Of U.P. & Ors.
41

19. This provision makes it clear that the appellate court has power to pass any decree which ought to
have been passed. It is admitted case of the parties that plaintiff Amarnath had executed the registered saledeed dated 20.07.2004 of his whole share in said land in favour of defendant Bhuwaneshwar Prasad Gupta
for consideration of Rs. 3,40,000/- and had received Rs. 1,76,000/- as sale consideration from defendant. It is
also admitted that at the time of registration of said sale-deed the defendant had agreed to pay remaining
consideration of Rs. 1,64,000/- to the plaintiff within one month, but had not paid remaining consideration to
plaintiff. Therefore plaintiff is entitled to receive remaining unpaid consideration from defendant. Even the
firstappellate court had also held that the plaintiff-appellant is entitle to recover his loss from defendantrespondent. This finding was never challenged.

20. Conventionally, this relief is sought in every plaint that if the plaintiff is found entitled for any relief,
it may be granted to him. Also, conventionally this issue is framed in every plaint that to what relief, if any,
plaintiff is entitled. The purpose of these two practices is that if the plaintiff is found entitled for any relief,
then the Court should and may grant such relief, without going into minor technicalities. It comes within
inherent jurisdiction of the Court. In present matter also the plaintiff had prayed for grant of any relief, to
which he is found entitled; and also issue no. 9 was framed by the trial Court as to what relief, plaintiff is
found entitled. In the present matter it is found that plaintiff-appellant had sold his property to defendantrespondents and had received part consideration. He has been found entitled for remaining unpaid
consideration, as discussed above Therefore, he is entitled for the decree of payment of unpaid consideration.
Apart from it, as discussed above, this is a fit case where the powers of Court under Rule 13 of Order 41
C.P.C should be exercised.

21. Therefore, this appeal is allowed, the judgment and decree of trial court in original suit no. 115/2006
as well as of lower appellate court in Civil Appeal no. 23/2013 are set aside. The plaintiff's suit is decreed,
with cost, for recovery of Rs. 1,64,000/- from defendant-respondent, with interest at the rate of 6% per
annum from the date of one month from 20.o8.2004. If the decretal amount is not paid within one month, the
plaintiff-appellant will be entitled to recover the same from defendant respondent to process of Court, at his
cost.
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APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.03.2016

BEFORE

THE HON'BLE HULUVADI G. RAMESH, J.
THE HON'BLE RAGHVENDRA KUMAR, J.

Special Appeal No.- 1272 Of 2006

Manoj Kumar Shukla ...Appellant
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Appellant: